As a Raider season ticket holder I am always cheering for bad news for other teams in the AFC West. I am not cheering for the news out of Denver regarding the teams reaction to the arrests of two of its executives for suspicion of DUI. Yes, suspicion of DUI, in fact these two executives haven’t been charged with any crime…yet.

Kapsack & Bair, LLP has exclusively handled DUI cases for over 16 years, we have seen cases like these end up dismissed, acquitted and reduced. Our Founding Fathers stated that a basic premise of our justice system was “innocent until proven guilty” yet these two men have been suspended (one indefinitely and one for a month) from their jobs yet neither has been charged with a crime nor provided the opportunity to defend themselves against these charges. It certainly is a tragic day for justice when one of our fundamental tenets is tossed to the side, especially when the NFL prides itself on being representative of the United States to an international audience.

In what is known as a plurality decision, one in which the judges agree with each other in certain parts but not others, the slim majority in Missouri v McNeely, has stated that police officers cannot take blood from a suspected DUI driver unless the officer first obtains a warrant from a Judge. Relying on the United States Constitution’s Fourth Amendment, commonly known as Search and Seizure, the Court said that the mere fact that a persons body is processing alcohol, and therefore the amount is slowly decreasing, does not create the same kind of emergency, known as exigency, as typical in other situations.

For example, if the police hear there may be explosives in a persons apartment that are set to go off, or the police hear a drug dealer flushing drugs in the toilet, then it is imperative that the police be allowed to go in to the apartment to prevent the explosion or stop the drug destruction. But when police are confronted by simple body metabolism, the need is not so severe. This is especially true in light of the modern practice of stand by judges with phone warrant procedures. This is a process where an officer can simply call a Judge, be sworn on the phone, and explain the need for the warrant so that the neutral detached Judge can decide if a warrant is constitutional.

The decision protects all of us from forced Governmental intrusion not in to our homes, but under our very skin.

In the First Appellate District Court of California, the law firm of Kapsack & Bair won an appeal of their earlier lower-court victory over the California Department of Motor Vehicles (DMV). The Appellate Court not only agreed with the lower court, but chose to issue a “published opinion,” to create a precedent for how law enforcement officers can legally conduct chemical tests.

The Oakland Raiders will open their 2012 campaign on Monday night against the AFC West, San Diego Chargers. With parking scheduled to open 5 hours before kick-off (2:15 pm) there are sure to be plenty of fans celebrating the home opener. CHP, OPD and other security agencies will be in place to keep things safe, including alcohol use. Don’t get caught up in a DUI checkpoint and if you do, put 510.645.0027 in your phone, Kapsack and Bair can help you.

Over the weekend the newly appointed Archbishop for San Francisco was arrested in San Diego. Mr. Kapsack was quoted in an Oakland Tribune article relating to the caution that District Attorney’s will exercise in evaluating evidence and determining whether charges should be filed. Our office often tries to intervene in the process between arrest and filing to put forward defense strategies and prevent charges from being filed, for regular citizens as well as high profile citizens. Early intervention may prevent charges from being filed. Read the Oakland Tribune Article.

The 19th annual Mastering Scientific Evidence seminar, put on by Texas Criminal Defense Lawyers Association and hosted by Troy McKinney showed once again why Bruce Kapsack is one of the top minds in DUI defense. Not only did Mr. Kapsack score the highest marks for his lecture on presenting the defense expert in DUI cases, he combined with forensic expert Jan Semenoff, of Saskatoon Canada, in giving the highest rated talk of the entire three day event.

Mr. Kapsack will next be lecturing on June 8th, in Monterey for the California Public Defender Association, at their annual DUI conference. Mr. Kapsack has been a mainstay and top draw at this training for nearly a decade. Having served as a Regent for the National College for DUI Defense, Mr. Kapsack was the first attorney in California to take and pass the Board Certification in DUI defense acknowledged by the American Bar Association. Kapsack and Bair, LLP is AVVO 10 of 10 and Martindale/Hubbell AV rated. Much of his technique is contained in Innovative DUI Trial Tools, James publishing, the top selling book on litigating DUI cases.

As reported in the news, and as commented on NBC news by Bruce Kapsack, the San Francisco Police Department has admitted to what amounts to fraud in the maintenance of some breath machines. Kapsack & Bair, LLP, will be conducting a full investigation of all San Francisco DUI convictions from the last several years.

If you have had a case in San Francisco, whether you were our client or not, please feel free to send an email to us with your name and case number to see if your DUI may be reconsidered and if you may be entitled to other relief.

This post is the first of a three part series on physical reasons breath machines can overstate a person’s true blood alcohol level.

Reason One: Breath Temperature

Most people will realize that measuring a person’s breath to determine their true blood alcohol level is an indirect measurement, whereas measuring the blood is direct. What is ignored by the government witnesses are the variables among individuals which can change the predetermined conversion factors from breath to the blood. In other words, the breath machine assumes that all of us have the same physical features, such as body temperature, weight, breathing patterns, etc. We know this is not true. This note will explain why and how this matters.

In order to measure a gas which has evaporated from a liquid, we use Henry’s law. Simply put this scientific rule says that if we know the amount of the alcohol in the blood, and we know the temperature the blood is heated to, then we can use a set formula to determine how much of the alcohol in the blood would evaporate in to the air. Working backwards, if we measure the alcohol in the breath, we can estimate the alcohol in the blood, BUT WE MUST ASSUME A SET TEMPERATURE. In state run labs the assumption is that the breath is at 34 degrees centigrade.

Henry’s law dictates that at 34 degrees centigrade, the breath will contain 82.7% of the alcohol in the blood. How is this important for most people?

The research upon which the 34 degree premise was predicated was conducted in 1950 by Dr. Harger. Unfortunately he only used SEVEN SUBJECTS. More recent research, conducted by several different scientists using HUNDREDS of subjects has determined that TRUE breath temperature is 35 degrees Celsius. While one degree may not seem like much, using Henry’s law, for every ONE DEGREE increase in breath temperature, the results will OVERSTATE the true blood alcohol by about 6%.

Standing alone this may not seem like much, but when added to the other physical factors I will discuss in upcoming entries, the breath can be as much as 35%.

I was recently voted top lecturer at the Arizona Criminal Defense Bar DUI program. Here’s the press release

Speaking for the Arizona Criminal Defense Bar on May 6th at their annual DUI program, Mr. Kapsack, of Kapsack and Bair, LLP, once again demonstrated why he is one of the most sought after lecturers and one of the best attorneys in the DUI defense field. Using techniques from his top selling book, Innovative DUI Trial Tools, James Publishing, Bruce lectured on redefining the process of Opening and Closing arguments to today’s juries.

Mr. Kapsack will next be lecturing in Chicago for the Illinois Bar on two topics,Trial Techniques and Breath testing. Having served as a Regent for the National College for DUI Defense, Mr. Kapsack was the first attorney in California to take and pass the Board Certification in DUI defense acknowledged by the American Bar Association. Kapsack and Bair, LLP is AVVO 10 of 10 and Martindale/Hubbell AV rated.